DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

M/s N.I.Fruits Co. (Proprietorship firm), Shop No.31-32, Subzi Mandi, Azad Fruit Market, Distt. Surat, Gujarat through its Manager Mehboob Khan s/o Sh.Jahangir Khan, Shop No.5, Sector 26, Chandigarh.

…..Complainant

                                      V E R S U S

1.       The New India Assurance Co. Ltd., SCO No.104-106, Sector 34-A, Chandigarh.

2.       M/s Indian Ex-servicemen Tpt Co., Plot No.27, Transport Area, Sector 26, Chandigarh.

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

ARGUED BY : Sh.Ravinder Rana, Counsel for complainant.

                       Sh.R.C.Gupta, Counsel for OP No.1.

                       OP No.2 exparte.

PER P.L.AHUJA, PRESIDENT

1.                M/s N.I.Fruits Co., complainant has filed this consumer complaint under Section 11, 12, 13 & 14 of the Consumer Protection Act, 1986, against the New India Assurance Co. Ltd. & Anr. - Opposite Parties (hereinafter called the OPs), alleging that the complainant is a proprietorship firm and doing the business of fruits and vegetables trading at Surat, Gujarat. On 2.10.2010 the complainant through its Manager purchased 575 boxes of apples from M/s Ludhiana Fruit Traders, Shop No.4, Subzi Mandi, Sector 26, Chandigarh on payment of Rs.4,83,000/- and also paid an amount of Rs.28,980/- on account of agent commission and Rs.5175/- as labour charges totaling Rs.5,17,155/-. Copy of the invoice No.1162 dated 2.10.2010 issued by M/s Ludhiana Fruit Traders, Shop No.4, Subzi Mandi, Sector 26, Chandigarh is Annexure C-1. The said 575 boxes of apples were to be transported to District Surat, where the complainant firm is also doing the business. The complainant engaged the services of OP No.2 for transporting apples to the destination i.e. District Surat.  The complainant also got Marine Declaration Policy No.336339 dated 2.10.2010 from OP No.1 by paying Rs.2,000/- extra to OP No.2. Copy of GR No.10833 dated 2.10.2010 issued by OP No.2 is annexed as Annexure C-2 and the copy of Marine Declaration Form dated 2.10.2010 is annexed as Annexure C-3. Thereafter on 2.10.2010, the consignment was loaded in the Tralla (truck) bearing registration No.HR-46B-5680 by OP No.2 for the destination i.e. District Surat (Gujarat). On 3.10.2010 at 5.00 PM the said truck/tralla met with an accident at Bhilwara, Swarupganj, Choraha, Chitourgarh Road, Bhilwara and one DDR No.131 dated 4.10.2010, copy of which is Annexure C-4, was lodged at Police Station, Hamirgarh, Bhilwara (Rajasthan). OP No.1 insurance company appointed a surveyor on 22.10.2010, who in his report admitted the fact with regard to the accident and damages of apple boxes. Despite the accident, the complainant succeeded in saving some stock of apples worth Rs.3,23,000/- and the same was sent to the destination and sold thereafter.  A copy of the said survey report is Annexure C-5. The complainant came to know that on the recommendation/findings of surveyor, the OP No.1 allowed a claim of Rs.1,94,000/-. The complainant made so many efforts and visits to the office of OP No.1 for getting compensation but to no effect. It has been contended that the action of OP No.1 is totally illegal. It has also been contended that the complainant also served a legal notice dated 14.9.2012, copy of which is Annexure C-6 vide postal receipts – Annexure C-7 upon the OPs. However, since some wrong facts were given in the legal notice dated 14.9.2012 an amended legal notice dated 4.10.2012 – Annexure C-8 was served vide postal receipt – Annexure C-9. OPs did not pay any heed to comply with the said legal notice. It has been contended that the act and conduct of the OPs amounts to deficiency and negligence in service and unfair trade practice and the OPs are jointly and severally liable to pay the claim. The complainant has made a prayer for a direction to the OPs to make payment of an amount of Rs.1,94,000/- towards claim, Rs.50,000/- towards mental pains, suffering and harassment and Rs.25,000/- towards the litigation expenses.

2.                Notice of the complaint was given to the OPs. OP No.2 did not appear despite service and it was proceeded exparte on 2.1.2013.

3.                OP No.1 in its written reply has pleaded that the matter involves complicated questions of law besides disputed facts and the same cannot be decided in summary proceedings, therefore, the matter be relegated to the Civil Court for adjudication. It has been averred that the complainant is a commercial entity and does not fall under the definition of consumer. It has been averred that the complainant has neither got any insurable interest in the matter in question nor locus standi to file and pursue this complaint because OP No.1 had issued a Marine Cargo Open Policy No.350200/21/10/03/00000186 in the name of Mr.Attar Chand, who purchased it with validity from 13.7.2010 to 12.7.2011 for journey from Chandigarh to anywhere in India as per the specifications given on the policy cover/policy schedule. Copy of policy of insurance with terms and conditions is Annexure OPR-1/A. It has been averred that the OP No.1 insurance company considered the entire matter in right perspective, perused the available documents and information along with the assessment made by the preliminary and final Surveyor and Loss Assessor vide their reports dated 22.10.2010 and 23.11.2010 – Annexure OPR-1/C & OPR-1/D and with due application of mind decided that since the insured Mr.Attar Chand was neither the consignee nor the consignor in the said consignment and he did not have any insurable interest in the loss therefore, it absolved itself from any liability and showed its inability to entertain the claim vide letter dated 9.8.2011, copy of which is Annexure OPR-1/B.  It has been stated that the present complaint is not maintainable. It has been averred that the complainant is neither a proprietorship firm nor dealing in vegetable/fruit trading at the given address. It has been averred that a detailed reply – Annexure OPR-1/E to the legal notice was given to the complainant. It has been further stated that the recommendations of the surveyor are not binding on the insurance company and the binding force is that of the contract of insurance between the parties.

4.                The complainant and OP No.1 led evidence in support of their contentions.

5.                After going through the evidence on record and hearing the arguments of the learned Counsel for the complainant and the learned Counsel for OP No.1, we find that the complaint is devoid of any merit.

6.                As far as the question of liability of OP No.1 insurance company is concerned, it is pertinent to note that though the complainant has alleged that it got Marine Declaration Policy No.336339 dated 2.10.2010 from OP No.1 by paying Rs.2,000/- extra to OP No.2 for sending the consignment to Gujarat, yet there is no such document which could show that the complainant purchased any such policy from OP No.1 for sending the consignment to Gujarat. On the other hand, the written reply filed by OP No.1 coupled with the copy of insurance policy – Annexure OPR-1/A shows that it was one Mr.Attar Chand, who had purchased Marine Cargo Open Policy No. No.350200/21/10/03/00000186 in his name, valid from 13.7.2010 to 12.7.2011 for journey from Chandigarh to anywhere in India as per the specifications given on the policy cover/policy schedule.  This fact has not been denied by the complainant by way of any rejoinder or any other document that the insurance policy was purchased by Mr.Attar Chand on 13.7.2010. The complainant purchased the said 575 boxes of apple for total amount of Rs.5,17,155/- from Ludhiana Fruit Traders vide Challan No.13 on 2.10.2010 – Annexure C-1 much after the purchase of the insurance policy by Mr.Attar Chand from OP No.1. G.R.No.10833 issued by Indian Ex-serviceman Tpt. Co. – OP No.2 also shows the consignor’s name as Mr.Attar Chand. The Marine Declaration Form – Annexure C-3 also shows the name of assured as Mr.Attar Chand. Therefore, it was Mr.Attar Chand, who had the privity of contract with OP No.1. The complainant never purchased any policy of insurance from OP No.1 nor paid any consideration amount for the purchase of the said policy to OP No.1. There is absolutely no documentary evidence to this effect that the complainant paid an amount of Rs.2,000/- extra to OP No.2 for getting Marine Declaration Policy from OP No.1. It is also significant to note that Mr.Attar Chand (whose address is the same as that of OP No.2) filed a claim with OP No.1 for transit damage to the consignment of fruits sent from Chandigarh to Surat. OP No.1 vide letter dated 9.8.2011 – OPR-1/B expressed their inability to entertain the claim on the ground that he was neither the consignee nor the consignor in the said consignment and he did not have any insurable interest in the loss. Thus, it was Mr.Attar Chand who had locus standi to file a consumer complaint against OP No.1. Since there is no documentary evidence to this effect that the complainant entered into a contract of insurance with OP No.1, therefore, there was no privity of contract between the complainant and OP No.1. The complainant being a consignee as per G.R.No.10833 – Annexure C-3 is not a consumer qua OP No.1 and his complaint against OP No.1 is not maintainable.

7.                So far as the liability of OP No.2 M/s Indian Ex-Servicemen Tpt. Co., who was engaged by the complainant for transporting apples to Surat is concerned, it is evident that the said apple boxes were got transported to Surat at the instance of complainant, who is doing business of fruits and vegetables trading for commercial activity. The complainant has also pleaded in the complaint that despite the accident it succeeded in saving some stock of apples worth Rs.3,23,000/-, which was sent to the destination and sold thereafter. Since the complainant hired or availed the services of OP No.2 for commercial purposes, it is not covered under the definition of “consumer” under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Otherwise also, for deciding the role of Mr.Attar Chand on behalf of OP No.2, detailed and voluminous documentary and oral evidence including the cross examination of the witnesses is required. The complainant has not explained in the complaint about the role of Mr.Attar Chand. Consequently, the issues involved in the complaint against OP No.2 cannot be decided by way of summary adjudication by this Forum.

8.                For the reasons recorded above, we do not find any merit in the complaint and the same is dismissed with liberty to the complainant to get the issues involved in the complaint resolved in the Civil Court.  In the circumstances of the case, the parties are left to bear their own costs.

9.                The certified copies of this order be sent to the parties free of charge. The file be consigned.